Karen writes to ask:
I am a U.S. green card holder, but I live in Asia with my husband, who is a U.S. citizen employed here by an American company. Is there any risk that I may unintentionally lose my LPR status because I am spending too much time outside the U.S.?
Our law firm is often asked by lawful permanent residents (LPRs) about how to preserve their status while abroad for a variety of reasons, such as work, study, caring for an ill relative, etc. General information about this can be found here: Green Card Holders Staying Abroad Over 6 Months Risk Abandonment.
In cases similar to yours, our firm has argued successfully to U.S. Customs and Border Protection (CBP) at ports of entry and to Immigration Judges in deportation proceedings that even an indefinite stay abroad does not result in abandonment if for purposes of accompanying a U.S. citizen spouse employed abroad by an American company.
An Analogy: Preservation of Residence for Naturalization Purposes Under Section 316(b)
Consider an analogous situation. If the LPR (not the U.S. citizen spouse) were employed overseas by a U.S. company or the U.S. Government, even indefinite employment abroad may be considered “temporary” and thus not cause “abandonment.” Matter of Kane, 15 I. & N. Dec. 258, 262-263 (BIA 1975), citing Matter of Wu, 14 I. & N. Dec. 290 (RC 1973), and Matter of Manion, 11 I. & N. Dec. 261 (DD 1965). The rationale is related to INA § 316(b), which provides that certain LPRs employed abroad for U.S. companies or the U.S. Government can file a Form N-470, Application to Preserve Residence for Naturalization Purposes, to seek an exemption from the continuous residence requirement for naturalization:
one purpose of section 316(b) was to benefit an American firm engaged in developing international trade by permitting its lawful permanent resident aliens to retain the continuity of their residence for naturalization purposes while employed abroad by such firm. It is inconsistent with the objectives of section 316(b) to hold that an alien who has been found eligible for the benefits thereof has lost his status as a permanent resident solely because of his extended absences abroad in the employment of the American firm.
Matter of Wu, 14 I. & N. Dec. 290, 293 (RC 1973).
The facts of Matter of Manion are striking. At the time he was granted LPR status, he had been employed abroad for a U.S. corporation for about 15 years. Just 4 days after obtaining LPR status, he applied for and was granted a reentry permit to continue that work abroad. Five year later, he applied for and was denied a new reentry permit. The district director held that the denial was error because his work abroad was “temporary” even though it was indefinite. (He “hopes” to return to the U.S. when “it is possible.”).
The facts of Matter of Wu are also illustrative. He had worked abroad for about 4 years after becoming an LPR, and he had no timeline to return to the U.S. except that it would be “upon termination of his assignment abroad.” His work involved the development of foreign trade and commerce of the U.S. Notably, he had an approved Form N-470, Application to Preserve Residence for Naturalization Purposes.
Another Analogy: Preservation of Residence for Naturalization Purposes Under Section 317
Another provision, section 317, states that certain ministers and missionaries working abroad who file a Form N-470 count as residing in the U.S. for purposes of naturalization. Hence, time abroad counts towards the naturalization requirement of 5 years continuous residence in the U.S.
In Matter of John, 17 I. & N. Dec. 534 (Reg. Comm’r 1980), a minister sought to be readmitted to the U.S. as a returning resident but was denied by the district director. On appeal, the regional commissioner held that it was error to deny the minister admission because section 317 would have allowed him to preserve his LPR status for naturalization (if he had applied):
It would be utterly inconsistent to hold on the one hand that the applicant’s presence in India as a missionary for a recognized United States religious denomination is meaningfully interruptive of his lawfully permanent status, while on the other hand positing that absences for this reason are not … interruptive of lawful residence status …for naturalization purposes.
Just Like Work Covered by Section 316(b) and 317 Prevents Abandonment, So Does a Spouse’s Work Covered by 319(b)
Your case, Karen, involves a separate statutory provision, INA § 319(b), providing that the spouse of a U.S. citizen employed abroad by the U.S. Government or by a U.S. company engaged in U.S. foreign trade or commerce is wholly exempted from the usual continuous residence and physical presence requirements for naturalization. The policy behind this “expeditious naturalization” statute is to benefit the U.S. Government and American firms engaged in developing international trade by allowing them to employ U.S. citizens abroad without the need for their LPR spouses to make the tough choice between either remaining in the U.S. to meet the residence requirement for citizenship or accompanying the U.S. citizen abroad. Just as in the above-cited cases, it would be inconsistent with the statute to hold that a wife eligible for “expeditious naturalization” on the basis of her husband’s employment for a U.S. company abroad has nonetheless abandoned LPR status.
Planning to Seek Readmission to the U.S.
So my feeling is that if you would meet the requirements for expeditious naturalization under 319(b) then you should not be at risk of abandoning LPR status. For more on expeditious naturalization, see our Guide to Expeditious Naturalization.
Of course, when entering the U.S., you need to be ready to prove you haven’t abandoned LPR status. Our firm could help you gather the proper evidence to show to CBP, provide you with a supporting legal brief, and help you prepare to answer the CBP officer’s questions in a way that is truthful and helpful to avoid abandonment.
Also, you need a valid entry document. The Form I-551, Permanent Resident Card (i.e., green card), is only valid for return to the U.S. after trips abroad of under one year. In the alternative, a reentry permit may be issued by USCIS valid for a period of up to two years.
Feel free to schedule a consultation with our law firm to discuss these topics.
Does anyone know how this would work for a military spouse? We get orders by the government that stipulate we must accompany a US citizen abroad.
For analogous reasons, an LPR who is abroad to accompany a spouse posted abroad for military service, faces minimal risk of abandoning LPR status.
I work for the Dept of Defense
As a civilian my wife received her
Green card 04/2020 we are currently assigned to Camp Humphreys South Korea
During this COVID-19 Pandemic is she still required to travel back to USA with in a year?
Edward: A special rule applies here: Unlike most LPRs who must can only use an I-551 (green card) for entry “if seeking readmission after a temporary absence of less than one year,” spouses of USG employees have a different rule:
8 CFR § 211
(a) General. … [E]ach arriving alien applying for admission (or boarding the vessel or aircraft on which he or she arrives) into the United States for lawful permanent residence, or as a lawful permanent resident returning to an unrelinquished lawful permanent residence in the United States, shall present one of the following:
(2) A valid, unexpired Form I–551, Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year, or in the case of a crewmember regularly serving on board a vessel or aircraft of United States registry seeking readmission after any temporary absence connected with his or her duties as a crewman;
(6) A Form I–551, whether or not expired, presented by a civilian or military employee of the United States Government who was outside the United States pursuant to official orders, or by the spouse or child of such employee who resided abroad while the employee or serviceperson was on overseas duty and who is preceding, accompanying or following to join within 4 months the employee, returning to the United States.